The Peace Agreement Jan. 2005 & The draft Constitution May 2005

By
Imam: Al-Sadig Al-Mahdi
President of Umma Party
May 2005

INTRODUCTION

Since independences, Sudan witnessed three democratic regimes which were toppled by:

· Weak partisan structures unable to command stable majorities in support of governments.
· Inability to balance satisfaction of religious, cultural, regional and developmental demands.
· Loose trade unions which became facilitating means for partisan ambitions.
· Pressure of the inherited civil war.
· The tendency to effect coup d’etats by some military segments.
· Neighboring environment discouraging democracy.
· Ideological political parties disbelieving in democracy with a high tendency to make a short cut to power by affecting a coup d’etat. These adventurers who took over power were overthrown as a result of some factors which we analyzed somewhere else.

As for “Al-Inqaz” regime, it is, today, besieged by a number of factors. These factors are:

· Civil Jihad
· Armed resistance
· Internal division
· Regional blockade
· International Blockade
· Failing polices in Darfur
· International resolutions as per Chapter Seven of the U.N. Charter particularly. Resolutions No. 1590, 1591 and 1593.

It is high time for “Al-Inqaz “ regime to acknowledge that their partisan policies have divided muslims and acquired Islamic program a bad name. For the first time in recent history of the Sudan, we witnessed the triumph of secular political logic and learned about the phenomenon of muslim apostates. Islam, in the Sudan, has always been characterized by tolerance and moderation. Such features have led to expansion and acceptance of Islam. However, callous religiosity has produced counter results.

The policies of the regime have alienated the Sudanese who spread all over the world seeking refuge and new homeland. Previously, Sudanese used to travel abroad only for medication, study or fulfilling work contracts. However, today, the majority left the Sudan for political or subsistence reasons. The policies applied in Darfur have unfastened the buttonholes of national allegiance. Many Sudanese began to trust the foreigners rather than their countrymen. They regard the foreigner as the one “who provide them with food against hunger, And with security against fear (of danger)”! The policies of the regime blemished the reputation of the Sudan with accusations of religious, humanitarian and cultural repression. A bunch of lobbies against the regime were formed around the world. Also, these policies made the Sudan, for the first time since independence in 1956, a target of international punitive resolutions issued by the Security Council under Chapter Seven of the U.N. Charter.

After three years of negotiations, the Sudanese regime succeeded in signing a peace agreement with Sudan people’s Liberation Movement (SPLM) in January 2005. The draft Constitution of the Sudan, issued by both parties, was based on this agreement. Both the Agreement and the Constitution would not have come to existence without the regional Kenyan lever; more importantly the international American lever.

The civil war in the Sudan preceded the “Inqaz” regime, which usurped power in June 30, 1989. However, what opened the gates of Hell for the regime in northern and southern Sudan, neighboring countries and the world at larges, is its attempt to enforce upon all a unilateral, expansionist and exclusive partisan program.

Our Position:

We speak on behalf of the neglected majority. We welcome peace, the corner stone which is borrowed from our initiative. However, we want a just and an all inclusive peace. We welcome democratization; yet we want it a real one. We have no reservations on the benefits gained by the South such as equality in citizenship, freewill unity, power and wealth as we will elaborate on later. However, we think that perpetuating the peace agreement entails that:

q The benefits of the South be for south; not for a party in the South.

q Justice is inclusive of all groups and the whole region.

We are neither attempting to exclude the National Congress Party, nor dealing, revengefully with them. However, we do not condone use of the Peace Agreement as a pretext to continue enforcement of their Islamic version on the muslim majority. We also do not accept use of the Peace Agreement as a license to control the North today and in the future.

Today’s People Demands

Today, the Sudanese people have four essential legitimate demands. These are:

1. Convening a constitutional national conference or a collective national forum, such as the CODESA Conference of South Africa (1993) To:
q Determine the ambiguous points in the Agreement requiring national mandatory explanation.
q Include significant peace issues neglected by the Agreement.
q Change the bilateral empowering infringing upon the rights of the others.
q Approve the basic points leading to reconciliation such as Self-determination, Interim Period, Equality in citizenship and others in order to convert the bilateral agreement into a national mandatory one.

2. Controlling democratization by concluding a human right document and protecting it from being negated; safeguarding human rights and fundamental freedoms; insuring conducting the censes and conducting free, impartial and internationally monitored general elections.
3. Insuring the priority and the nationality of Darfur Question and the other conflicts such as the one in the East of the Sudan. All these issue need be principal items in the agenda of the national conference.
4. Positive cooperation with the U.N. and seeking the assistance of the international organization until just peace is established, democratization is in place, transgressors are disciplined and victims are compensated.
This Book:

This book is an illustration of facts and a call for the people of the Sudan to be prepared to support the comprehensive just peace, real democratization and international justice as well as to obtain their legitimate rights.

We call all the political forces of the Sudan, however different their parties, visions and means might be, to conclude a collective national covenant. We will accomplish its objectives, which represent the legitimate ambitions of the people of the Sudan, by means of civil jihad. No one is exempt. All using their own resources should stand up to save their homeland.

The Peace Agreement 9/1/2005:

The peace movement in the Sudan has undergone different stages, the last one being the agreement signed by the Sudanese regime and the Sudan People’s Liberation Movement (SPLM) on 9/1/2005. Both parties (Sudan Government & SPLM) met in continuous negotiations between May 2002 and May 2004 in Machakos, Karen, Nairobi, Nakuru, Nanyuki and Naivasha, Kenya.

The Agreement has been reached through a number of foot steps starting with Machakos Protocol dated 20th July, 2002 and followed by Agreement on Security Arrangements, during the Interim Period, dated 25th September, 2003, Agreement on wealth sharing, dated 7th January 2004, Protocol on Power sharing, dated 26th May, 2004, Protocol on the Resolution of conflict in Southern Kordofan/Nuba Mountains and Blue Nile States, dated 26th May, 2004, Protocol on the Resolution of conflict in Abyei Area, dated 26th May 2004 and the Agreement on the Modalities of Implementation of the Agreement, dated 31th December 2004. Thus, the Agreement comprised – as stated in the Declaration on the Final Phase of Peace in the Sudan – the protocols and Agreements already singed, together with the Agreement on the Permanent Ceasefire Arrangements (Annex I) and Agreement on the Modalities of Implementation of the Agreement (Annex II). The Agreement includes the following chapters:

q Declaration
q Chapter One: Machakos Protocol
q Chapter two: Power Sharing
q Chapter Three: Wealth sharing
q Chapter four: Resolution of the Conflict in Abyei Area
q Chapter Five; Resolution of conflict in Southern Kordofan and Blue Nile States
q Chapter Six: The Security Arrangements
q Annex I : Permanent Ceasefire Arrangements together with the means of implementation and the attachments.
q Annex II: Modalities of Implementation

The Constitution:

The constitutional development of the Sudan has undergone a number of phases. The last one being the Draft Constitution written by experts and reviewed by two teams representing the two parties of the Agreement (each team comprising seven members: 7 + 7). The draft consists of 228 Articles comprising a preamble and sixteen chapters. Twenty Sudanese lawyers and politicians have been invited to Nairobi by the African Organization of Justice to deliberate on the proposed constitution during the period of 18-21 April 2005. The agreed upon Commission for reviewal of the Constitution, as per the peace Agreement, and some Sudanese Parties were asked to discuss the proposed constitution in Khartoum on 30th April, 2005.

The peace Agreement and the Draft Constitution of the Sudan cover crucial issues relating to stopping civil war, peace building and home country building in the shelter of democratization.

All people of the Sudan and in fact, neighbors of the Sudan and the international community have stake in both documents, which represent a road map for a just and comprehensive peace in the Sudan and democratization ending up with stability or a fragile building built on sand.

Chapter One
The Peace Agreement
1. The Agreement satisfied the aspiration of the people of the Sudan.
The Agreement included items and principles, which satisfy the aspirations of the Sudanese people. These are:
· Stopping the war and a promise of just peace.
· Self-determination for the South is the basis of voluntary unity.
· Principle of fair power sharing power
· Principle of fair wealth sharing
· Securing human rights in compliance with the obligations under the international human rights treaties and establishing a commission to that end.
· An interim period to lay the foundation of a just home country attracting the allegiance of all citizens.
· Acknowledging the religious, cultural and regional diversities
· Consolidating the principle of constitutional and administrative decentralization.
· Assurance and guarantee of the independence of the Judiciary.
· Free and internationally monitored general elections administered by an independent commission.
2. Our role in developing the concepts of the Agreement.
We welcome these principals and attitudes and believe that they satisfy the legitimate national aspirations. We have said this time and again. Our political literature confirms the following:

A. We led the other on the idea of establishing the voluntary unity between the North & the South on the basis of self-determination. In fact we convinced all the political forces in the North by this idea as of Shogdum Forum in December 1994.
B. We made a proposal to solve the issued of religion and state in Nairobi conference in 1993. We proposed using citizenship as a basis of constitutional rights and liabilities and assuring freedom of religion thereby.
C. In Asmara Conference, June 1995 we suggested including the international human rights treaties in the peace agreement.
D. In Islamic independent reasoning, initially rejected but widely accepted now, we indicated that:
· Admitted or not, Allah is the Lord of all beings. Sovereignty is a political expression requiring contribution and accountability. So the correct wording is to say sovereignty be unto the people.
· Faith is a matter of choice that is free of coercion. Therefore, any one who practices his freedom of conscience, though a religion shall not be subject to punishment.
· We proposed that legislations intended to be applied to all people be free of religious content. Those legislations with religious content are applied to related believers.
E. Throughout history we took a positive position to bring justice to the South by applying the following measures:
q Declaring that the problem of the South is a political, cultural and economic issue; not only a security and military one. It should be resolved by negotiations held in a free environment. This took place in April 1964.
q Our positive contribution in the Round Table Conference, 1965 and in the Twelve-Member Committee, 1966. We, also, convened the collective conference of the political parties in 1967. This lead to the recommendation to establish a regional self-rule system in the South and state governments in the other regions. This recommendation has been embodied in the Draft of the Permanent Constitution, 1968 submitted to the Constituent Assembly. It has been used by May Regime, 25th May, 1969 in the negotiations with southern political forces and eventually represented the cornerstone of the peace agreement concluded in 1972.
q In our negotiations with May Regime, 25th May, 1969 and in our literature, we reiterated that the only achievement of the Regime is the Peace Agreement which was based on the arrangements prepared by the former democratic regime. Our only criticism focused on it bilateral nature and the need to protect it by making it a national agreement.
q Our positive contribution in Kukadam Conference, March 1986. Our positive position on the Sudanese Peace Initiative, November 1989 with reservations on it bilateral nature and the need to use it as a basis of national reconciliation. That was the case. According to the Transitional Program of the Repulican Palace signed by 29 political parties and trade unions in February 1989 and adopted by the national unity government,
the Constitutional National Conference, approved to be held on 18/09/1989 by all parties except for the National Islamic Front which took another path, coup d’etat, and aborted the whole peace project by the coup of 30/06/1986.
q Since the coup took place and the establishment of the Sudanese National Democratic Alliance as an instrument of opposition, we concluded a tribal peace agreement between neighboring tribes on South-North borders and managed to make the Sudan People’s Liberation Movement (SPLM) a member of the Alliance.
q We led the other to hold a Constitutional National Conference in order to resolve the issue of state & religion in such a way that guarantees equal citizenship, realizes just power & wealth sharing and acknowledges religious & cultural diversity.
q We lead the others on the idea that the national conciliation atmosphere requires that Sudanese groups concerned should admit the reality of past feelings of the cultural superiority and the need to make an apology so that healing can be attained.

3. Lack of Comprehensiveness:

In Northern Sudan the are feelings of injustice and demands of the same type as of the south. These demands related to decentralization and power & wealth sharing. The current regime governing the Sudan dealt with these demands improperly. This inadequate handling converted these demands into national and international issues. It is absurd to do justice to the South and neglect those demands. Such an act inflamed the feelings of those areas in the different parts of the North knowingly the Sudan comprises five regions of joint identities: South, North, East, West and Middle. There are, also, five distinct ethnic groups: Arabs, Negroids, Bejjah, Nubian and Nuba. Dealing with such diversity has not been balanced in the past which led to similar demands except for self-determination for the south. The later demand came directly as a result of “Al-Inqaz” regime’s policy of exclusive “Jihad” motivated by expelling ideological agenda.
There are some North/North and South/South problems. If such problems are not seriously and adequately addressed, they will continue to develop using all means of protest including fighting. They will turn to new fighting movement following the example of the SPLM and its Army. The incentive being the accomplishments the SPLM ended up with. If the gains of the South are considered for the whole south, political and interest groups will aspire for a fair share. If the gains are considered to be confined to the SPLM, the other forces will fight it. So is the case in the North. With similarity of demands, fulfilling those of the SPLM and its Army because it is armed and without fair consideration of the others’ demand, will open “Ali Baba’s Cave” (or a Chinese box) of armed uprisings.

5. Contradictions:
There are correct clauses in the Agreement which are negated by contradiction:
A. The Agreement declares that it is a comprehensive peace agreement, however, its definite clauses means the opposite; they lay the foundation of a bilateral party deal.
B. The Agreement indicated that “the two parties agree that comprehensiveness is the essence of the Agreement and they call all other armed groups and political forces to join the peace process, take part in it and protect the Agreement”. This noble objective is not feasible because what is available for the other political and military forces, according to the clauses of the Agreement, is to politically and militarily bless the bilateral authority.
C. The Agreement (16-3) indicated that the Armed Forces in the Interim Period shall be professional and non-partisan. It will consist of the two Armed Forces and the Joint/Integrated Units. In fact the Armed forces is a partisan organization; the Agreement states that it is a military alliance between the two parties.
D. The Agreement indicated a correct objective which says “there shall be no legal impediment to interstate commerce or the flow of goods and services, or labour between the states/regions”. This is contradictory with the existence of two different banking systems in the country.
E. The major contradiction is represented in the notion that the parties to the Agreement asked the U.N. to send a high authority mission under chapter six of the U.N. Charter. However, the Security Council decided, by means of resolution 1950, to send to the Sudan a mission with authority higher than that stipulated in the Agreement. Thus, the Agreement is subjected to a major amendment before its ink dried-up.
6. Bilateral Deal:
Contrary to the declared objectives, the Articles of the Agreement establish a bilateral deal that is impossible for the others to willfully accept it. Details of the deal are manifested in twenty Articles as follows:
5-1 The composition of the Assessment and Evaluation Commission shall consist of equal representation from the Government of the Sudan and the SPLM/A and not more that two representative from IGAD States, the four observer states and other countries or international bodies agreed upon by both parties [2-4-1].
5-2 As for self-determination, the Agreements states that: “At the end of the six (6) year Interim Period there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of the South to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession.”[2-5]. Thus, conducting the referendum concern, solely the bilateral governors.
5-3 The most serious in the clause of self-determination is the confirmation of the bilateral government system in the Interim Period and in the future as well if unity is approved. A faulty interim system intended to be a permanent system for the Sudan.
5-4 The Agreement stated that “whoever runs in any election must respect, abide by and enforce the Peace Agreement”. [1-8-6]. This means that freedom is only for those who support the bilateral authority.
5-5 The Agreement indicated that “prior to the Parliamentary Elections, the seats of the National Assembly shall be allocated as follow:
(a) National Congress shall be represented by 52%.
(b) Sudan People’s Liberation Movement shall be represented by 28%
(c) Other Northern political forces shall be represented by 14%.
(d) Other Southern political forces shall be represented by 6%.
This means establishing a bilateral majority of 80% able to do whatsoever and render the presence of other a mere décor.
5-6 “The President (of the Republic) shall be elected in national elections, the timing of which shall be subject to the agreement of the two parties “[2-3-7].
5-7 Prior to the lections, the seats of the national Executive shall be allocated in the same ratios of the seats allocation of the National Assembly. [2-5-5].
5-8 Ratification of the Agreement after being signed is bilateral. “The text thereof shall be forwarded to the National Assembly and the SPLM. National Liberation Council for approval as is “ [2-4-1].
5-9 The Agreement is superior to the Constitution by virtue of the following provision: “In the event of a contradiction, the terms of the Peace Agreement shall prevail in so far as that contradiction is exists. “[2-12-5].
5-10 Ratification of the Constitution is also bilateral. ”Upon adoption by the National Assembly and the SPLM national Liberation Council, the Constitutional text shall become the Interim National Constitution for the Sudan during the Interim Period. [2-12-7].
5-11 Sharing the Legislature of Southern Sudan is based on bilateral enhancement as follow: [3-5-1]
(a) The SPLM shall be represented by 70%
(b) The National Congress shall be represented by 15%.
(c) The others Southern political forces shall be represented by 15%.
5-12 The Southern Sudan Executive is, also shared on bilateral basis [3-6-4].
5-13 The States’ power is also, similarly shared. The National Congress shall have domination on the North; the SPLM be dominating the South. The text says” The N.C.P. is to hold 70% in the Northern States, and the SPLM 70% in the Southern States. The remaining 30% in the Northern States and the Southern States shall be allocated as follows:
A. 10% in the Southern states for the N.C.P.
B. 10% in the Northern States for the SPLM.
C. 20% in the Northern and Southern states for the other Northern and Southern political forces respectively [4-4-2]
5-14 The composition of the National Petroleum Commission is based on bilateral enhancement to the exclusion of others [3-3].
5-15 All Sudanese have no right to access existing oil contracts except for the government of the existing regime and the SPLM [4-1].
5-16 The Executive organs and Legislatures in both Southern Kordofan/Nuba Mountains and Blue Nile States shall, exclusively, be shared by both parties to the Agreement.
5-17 The formation of the Sudanese Armed Forces is equally shared by both parties. The text reads as follows: “formation of the future army of Sudan that shall be composed from the Sudanese Armed Forces (SAF) and the Sudan People’s Liberation Army (SPLA)”. [Article I of the Agreement on security Arrangements]. The composition of the Armed forces in the Interim Period is, also, strictly bilateral.
5-18 The two parties shall direct the press informationwise during the Interim Period. The text reads” without prejudice to the freedom of the press, the parties agree to form a joint media committee upon signing the comprehensive peace agreement, to work out general principle for the media and the press with the objective of promoting an environment encouraging peaceful implementation of the cease fire”. [10-4]. This means curtailment of the freedom for the press in favour of a bilateral direction.
5-19 As per the Agreement, the other armed forces in the Sudan have no other choice than joining either of the armed forces of the two parties. [7- A & B].
5-20 The National Defense Council is composed exclusively on bilateral basis [17-1].

7. Ambiguities:
The confidence gap between both negotiating parties has been wide since each represents the opposite ideology in Sudan politics. Dialogue has been, largely futile. This confidence gap adversely impacted on the national interest in two ways. The first being that dialogue reached a deadlock on number of issues and intermediaries have to come up with a third opinion. Though accepted by both parties, the third opinions carry seeds of conflict. This rendered around twenty Articles of the Agreement ambiguous; bearing different interpretations. The second being the major role given to the international community in monitoring and implementing the Agreement. We will dwell upon this point later, but we will review, here, the ambiguities.
6-1 The Agreement stated in (Chapter one: Machakos Protocol): “A representative National Constitutional Review Commission shall be established during the pre-Transition period which shall have as its first task the drafting of a legal and constitutional framework to govern the Interim Period and which incorporates the Peace Agreement” [3-1-2]. However,, Article 3-1-4 stipulates that “ During the interim period an inclusive constitutional review process shall be undertakes”. This means that the job of the Constitutional Review Commission and its resultant constitution are confined to a specific job and time. Different interpretations of these two articles delayed formation of the commission for five months instead of two weeks (as per the Tables of Implementation of Machakos and Power Sharing Protocols). On 30/04/2002, the Commission was defectively formed. Contrary to the articles of the agreement, the Commission assumed the mission of writing a permanent constitution.
6-2 Article 3-3-1 in Chapter One: Machakos Protocol reads. ” there shall be a National Government which shall exercise such functions and pass such laws as must necessarily be exercised by a sovereign state at national level. The National Government in all its laws shall take into account the religious and cultural diversity of the Sudanese people”. Is this a nationally formed government or is a bilateral enhancement government designed by the Agreement?
6-3 The Power Sharing Protocol included the following stipulation in Article 1-6-2-16-(b):” The human rights and fundamental freedoms embodied in the International Covenant on Civil and Political Rights (ICCPR) shall also be reflected in Interim National Constitution. No derogation from these rights and freedoms shall be made under the Constitution or under the ICCPR except in accordance with the provisions thereof and only with the approval of the Presidency and National Legislature, as required by section 2-3-14 herein”. Does this mean to provide for the international covenants and then annul them?
6-4 Provision for national reconciliation is ambiguous and include no instruments whatsoever. P1-7: Chapter Two: Power sharing].
6-5 An agreement has been reached on definite dates for conducting the population census and holding the general elections. The definite dates were cancelled by means of a loose stipulation which included: Six month before and end of the two periods the parties shall meet and reviews the feasibility of the dates set out [1-8-4] and [1-8-5]: chapter two: Power sharing.
6-6 The stipulation concerning the status of the capital is open to more than one interpretation since it provides for its national status and the requisites of such status, and at the same time indicates application of Sharia law in it [2-4]: Power Sharing.
6-7 Law enforcement in the capital is left to loose arrangements. [2-4]: Power sharing.
6-8 An impartial and representative National Electoral Commission! …….vagueness encompasses its composition and authority [2-10-1-1]: Power sharing.
6-9 The Human Rights Commission is also engulfed by obscurity.
6-10 So is the case with the National Judicial Service Commission [2-10-1-3].
6-11 This also applies to the National Civil Service Commission. [2-10-1-4].
6-12 This is also true regarding the ad-hoc Commission for Monitoring the Referendum, which, also, includes international experts.
6-13 As well as the Fiscal and Financial Allocation and Monitoring Commission. [2-10-1-6]”: Power sharing.
6-14 In spite of its paramount importance in the National wealth of the Sudan, ownership of land has been left to the two parties who “agree top establish a process to resolve it”. This is a crucial issue regarding wealth and has serious implications on the national security of the country [2-1]: Chapter three: wealth sharing.
6-15 The agreement on the future of Abyei is full of obscure points. [1-1]: Resolution of Abbey Conflict.
6-16 Representation of Southern Kordofan/Nuba Mountains and Blue Nile States has been provided for but left undefined. [1-1-6]: Resolution of conflict in Southern Kordofan/Nuba Mountains and Blue Nile States.
6-17 The two parties shall develop a common military doctrine as a basis for the joint/integrated units, as well as a basis for a post Interim Period army of the Sudan. How can two forces be, temporarily, integrated knowing that one of them is based on a Jihad combat principle and the other on a secular basis? How can the doctrine be national while it is developed by two parties? [Chapter Six: Security Arrangements].
6-18 Handling the issue of the other armed forces is still hanging and may be a source of many differences.
6-19 Handling and organizing the police forces is likewise.
6-20 Also, the National Security Service.

7. Principle Issues Neglected:
The Agreement paid attention to minute details in distributing the seats of power. However, it neglected issues that might turn into time bombs if not conciliatorily addressed. There are seven critical issues among the causes of conflict in the Sudan which haven’t been adequately addressed. These are:
A. Cultural Superiority and inferiority and the need for a detailed protocol or covenant on cultural issued.
B. Inter-religion relations: Islam, Christianity, Judism and local Sudanese religions. All these require a comprehensive religious covenant.
C. Wealth is limited to oil in the South and Tax revenues. This is a narrow, short and inadequate understanding of wealth which neglected other sources of wealth under and above the ground as well as water, particularly the Nile Water.
D. There is a complaint that the foreign policy of the Sudan cared for the Arabic dimension and neglected all other dimensions. There is a discrepancy in the position of the two parties on the relationship with Ethiopia and Eritrea. This applies also to the Palestinian question.
E. Agreed composition and combat doctrine, which provide Sudan with a legal and secure Armed Forces was neglected.
F. The Agreement neglected an important issue addressed by all successful peace agreements. That is agreement on principles and mechanisms to handle past grievances lest they adversely impact on reconciliation and stability.
G. In many Articles, the Agreement indicates compliance with being national, comprehensive and inclusive. However, no mechanism or instrument whatsoever was designed to meet those national and noble ends.

8. Defective Clauses of the Agreement:
The Agreement included excessive partisan and shortsighted provisions, which give no room to other but to voice their opposition. These are:
First: The binary system which imposes on the North a so-called Islamic system. This system is more exploitive of the needy than the interest rate system. It, also, uses methods of trading such as “Murabaha” and “Silm” as credit methods whereas they are not. The sound idea is to have two windows in each bank in the Sudan. One window uses interest rate; the other “Silm’, “Murabaha” and “Sharakah” on the basis that all are lawful and legitimate (according to Sharia Law). We indicated that using interest rates as a compensation for the value of currency is considered a “duty” by Sharia Law. Also, using interest rates is crucial for determining priorities of investment. It is important for controlling the cash volume. It is necessary for dealings with international banks. Necessity makes it mandatory.
Second: The bilateral composition of the Board of Directors of the Central Bank provided for in the Agreement is offending to others. It should have provided for the Board of Directors of the Central Bank to be professional and independent.
Third: Spending an amount no less than $80 million to issue a new currency, the life of which may not exceed two years, is useless.
The issue of currency may be delayed until the result of the Referendum is known. In the meantime currencies currently used may continue to be used.
Fourth: The bilateral composition of the Sudan Armed Forces during the Interim Period is wrong and threatens the interests of the others. Furthermore, it does not protect the national security.
Fifth: Composition of the National Armed Forceson bilateral partisan basis is a gross error and an un admissible negligence of the national interests.
Sixth: Leaving the timing of the elections at the disposal of the bilateral authority is unacceptable since they are the litigent and the judge at the same time.
Seventh: The current formula of the Referendum is wrong because it embodies continuous bilateral dominance after the Referendum if unity is approved. The right formula for voting in the referendum is unity based on justice or secession and good-neighboring.
9. Unjust Provisos:
There are excessively unjust five clauses. If they are left as indicated in the text of the Agreement, it means confirmation of an oppressive bilateral dictatorship now and in the future. Hence, that should be countered comprehensively. These are:
First: The stipulation to deprive any individual or party of rights of citizenship and democratic participation unless he complied with the bilateral Agreement. People and organizations may be asked to comply with peace, democracy, voluntary unity of the country, national sovereignty, human rights, religious freedom and discarding violence as being obligatory permanents to each citizen. However, this should not include a faulty agreement.
Second: Insertion of continuity of bilateral authority in the formula of self-determination referendum.
Third: Allowing manipulation of human rights by means of restrictions imposed by the bilateral authority.
Fourth: Introducing a bilateral military alliance as though it is the national composition of the Armed Forces.
Fifth: Leaving the issue of the elections, i.e.; its law, supervision and timing to two political parties to the exclusion of the others.
10. Internationalization:
This Peace Agreement laid the foundation for international protection. It represents the highest degree of abandonment of the concept of national sovereignty. We, the people of Sudan accepted this internationalization out of objective necessities. These necessities are:
First: The confidence gap between the people created by the policies of the Regime necessitated the presence of an international witness, monitor and guarantor.
Second: Inability of the Sudan Regime to conduct the normal duties of a national government such as provision of living conditions and protecting the security of the people.
Third: Wide spread mistrust in the Sudan led to “confidence” in the “international” more than in the “national”.
Fourth: The international policy towards the Sudan followed a path leading to a just peace, democratization, protection of human rights and prosecution of offenders. This rendered the international community a better guarantor of human rights and fundamental freedoms. The anticipated role of the U.N is to be a neutral "arbitrator” between the two parties to the agreement and be a fair “judge” between the two parties and the other excluded popular and civil entities.
10. Some Sudanese official talk about national sovereignty as through it is existing as normal. This is not true. According to the Peace Agreement, the Sudan case has been internationalized by virtue of the following ten points:
10-1 Both parties shall provide the U.N. with lists describing, in detail, the size and location of their forces etc 8-7(Attachment-I: Permanent ceasefire, Security Arrangements, Mechanisms of Implementation and Annexes).
10-2 Both parties plus a U.N. delegate shall resolve the issue of the other armed groups (11-4): Attachment-I
10-3 The Ceasefire Political Commission includes a representative of the U.N. Secretary General (14-2-3): Attachment
10-4 The U.N. is, also, represented in the Joint Military Commission (14-6-4): Attachment-I
10-5 The U.N. is, also, represented in the Joint Military Commission for the Region (in Juba, Malakal, Waw, Kadogli, Abyei, Damazin, Kurmuk): (14-7-1-1) and (14-7-1-3): Attachment-I.
10-6 Both parties to the agreement ask the U.N. to take an inclusive and detailed role in monitoring and implementing the peace agreement according to the optional Chapter Six of the U.N. Charter. The Security Council reviewed the request and the recommendations of the Secretary General and decided increase the powers of the U.N. Mission to the Sudan and sends it as per the mandatory Chapter Seven of the U.N. Charter. [Resolution 1590] .
10-7 The Armed Forces of the Southern Sudan shall be financed by foreign sources. [21-1]: Attachment – 1.
10-8 The Sudan Police Forces shall be subjected to International training. [22-5]: Attachment –1.
10-9 Also, disarming and mobilization of forces shall be under international supervision [24-3] and [25-2-3]: Attachment -1.
10-10 The process of development and rehabilitation shall be, according to the resolutions of Oslo conference, under international management. [April 2005]
All this, in addition to the international role in resettlement of those displaced, refugee affairs and humanitarian relief activities. It is known that all operations related to ceasefire, protection of civilian and different peace projects are given to foreign regional or international parties in Kenya resorts, Aboja, Cairo, Ingeminah and Tripoli. What is left of national sovereignty to the people of Sudan in very small.

Conclusions:
That has been about the Peace Agreement.
The people of Sudan ought to know its pros and cons in order to be ready for the next stage in which we should confirm the advantages and correct the disadvantages in the course of building peace, homeland and democracy and accomplishing development and justice.

Chapter Two
Draft Constitution
Prepared by Joint Committee (7+7) of the Government of Sudan and the SPLM.
The Constitution is the basis of governance which is binding to all citizens, state’s institutions, government organs and opposition. It is the father of the political regime and the laws. Hence, there is no legitimacy for constitution imposed by force. The legitimate constitution is the one written and approved by the free will of the people.
Since the independence of the Sudan, democratic governments were eager to write a legitimate constitution. However, they were not allowed ample time by coup d’etat adventures. The two totalitarian regimes which successively governed the Sudan issued two constitutions, the 1973 constitution and the 1998 constitution. Both constitutions expressed the will of governors; not the will of the people. The Constitution Draft prepared by seven plus seven is based on 1998 constitution and a bilateral peace agreement. It is deeply routed in supremacy. Discussion by decorative political forces are of no avail. The draft would be approved by the councils representing the two parties to the agreement. The draft constitution does not approach the level of maturity of the Sudanese community and level of legal knowledge available to the people of the Sudan. It does not, even, approach the level of qualification of the two parties to the agreement. It looks like a documents of a “village” settlement between two clans rather than being a project intended to resolve crucial issues for peace building and democratization of the country witnessing ten armed conflicts, as well as cultural, regional and inspirational diversities.
We have not disclaimed the bilateral negotiation of the constitution because it had been a necessary first step. However, we reject the bilateral superiority which makes what has been agreed upon by two parties unquestionably obligatory to the other.
If bilateral action is supported by knowledgeable awareness and good intention, it can be a good advance towards national ends. We will objectively, review the consequences of bilateral action to demonstrate that they deviated from national interest, paved the way for new polarization and discarded the comprehensive just peace as well as the required democratic stability.
Principle Flaws:
There are seven principle flaws in the proposed constitutional text.
These flaws are:
First: The text claims that its objective is accomplishing comprehensive peace and that it is an expression of national will. However, its clauses, premeditatively, lead to bilateral partisan enhancement.
Second: The peace agreement signed in January 2005 is superior to the constitution and unquestionably obligatory. The constitution, the secondary text, will be opened to limited consultations! Isn’t it absurd?
Third: What is the value in participating in the Constitution Commission so long as the participation ratio is doomed. The parties to the negotiation have mechanical majority.
Fourth: The government acknowledges that it does not represent the whole North; the SPLM, likewise, admits that it does not represent the whole South. In spite of that their agreement is binding to all people of the Sudan.
Fifth: The 1998 Constitution was based on the “Tawali” concept which restricted political freedom. As a result of struggle the “Tawali” concept was deleted and freedom replaced it. The current Draft Constitution establishes a new bilateral “Tawali” which prohibits political freedom except for those who condone bilateral enhancement.
Sixth: The Draft Constitution legalizes an exclusion deal between two parties who secured partisan enhancement for themselves and marginalized the others.
Seventh: With all of its embodied flaws, the Interim Draft Constitutions jumps from its interim nature to become the Permanent Constitution of the Sudan if the Southerns voted in favour of unity; or the permanent constitution of the North. If the Southerns voted in favour of secession. This is the content of the question put forward for the self-determination Referendum at the end of the Interim Period.
Structural Defects:
The draft constitution incorporates seven structural defects; as though 7+7 indicates the principle flaws and the structural defects!
First: In many clauses, the Constitution indicated communal expressions such as comprehensiveness and national. However, it committed and unprecedented mistake. That is, mentioning the rights and interest of two parties in particular.
Second: The Constitution proposed a universal document of human rights. However, the said document is negated as submission to the bilateral enhancement is made conditional.
Third: There are similar grievances in the Sudan. Important one’s are: imbalanced development and services, claims of cultural superiority and discontent with centralization and limited participation in political decision-making. The Draft Constitution addressed these grievances in some regions, and neglected other regions; thus instigated protest.
Fourth: In response to demands made by the political forces, the Draft Constitution proposed establishment of monitoring commissions. However, these commissions are rendered functionless as they are subjected to the bilateral enhancement prevailing in the executive and legislative organs.
Fifth: For no justifiable reasons the Draft Constitution jumps from being an Interim Constitution to be a Permanent Constitution.
Sixth: The legislative councils are subjected to the executive leadership of the two parties in their composition and work. So, they cannot play a monitoring role on the executive authority and there is no room in them for a constitutional opposition. They are just excess bodies.
Seventh: The Peace Agreement includes a lot of details. Constitutions do not incorporate details. This Constitution is similar to the Peace Agreement as it incorporate a lot of its details. It is just a new arrangement of the Agreements chapters and sections.

Elaborate:
The text of the draft constitution prepared by the (7+7) commission included a great number of Elaborate faults. I mention here the important twenty faults:
1. Article (21) stipulates that “the state shall initiate a comprehensive process of national reconciliation and healing and peaceful co-existence between all the Sudanese people”. This clause is retarded compared to other clauses coined in other African peace agreements, which include independent instruments with specific powers for implementation.
2. Article (27) proposes a rights document “the rights document is a covenant between all people and governments of the Sudan at all levels. It is a convention that they will abide by, respect and work in accordance with the human rights and fundamental freedoms embodied in the Constitution. These are the cornerstone of democracy, human rights and fundamental freedoms in the Sudan. The state should guarantee, respect, protect, support and enforce the rights indicated in this document. The rights included in the international human rights treaties; covenants and mechanisms ratified by the Republic of the Sudan are considered an integral part of this document. This is a good proposal. However, the rights indicated in the document are not inclusive. Hereunder is a comprehensive list of the rights required to be included. These rights are:
The right of belief and worship - the right of human dignity - right to life - freedom of opinion, expression, media and receipt of information - freedom of assembly and social association - freedom of establishing political parties - freedom of movement - right to just trial - prohibition of torture, prohibition of detaining - right of equality, prohibition of slavery and servitude - right of litigation - right to education - right to health care - right to work, equal pay and strike - protection of privacy - political rights – rights of cultural groups - right to ownership - nationality right - rights of those with special needs - family rights - women rights mother right - right of freedom from hunger - child right - right of those mentally ill - right of treating the accused and the convicted - right to healthy environment - right to entertainment - right to political asylum.

3. Article (40) of the Draft Constitution provides for freedom of assembly and association. However, it denies this right and the freedom to establish political parties by resorting to abolished principle of “Tawali”. Article [2-4-B] reads: ‘political parties should have a program supporting the comprehensive peace agreement and be compatible with the constitution”.

4. Article (218) of the Constitution dispossesses the citizens from their political rights because it stipulates that “whoever runs in any election must respect, abide by, and enforce this constitution and the Comprehensive Peace Agreement”.

5. Article (141-2) included “According to the law of Human Rights Commission, the Presidency shall establish a 15-member commission. Members shall be qualified, impartial, non-partisan and representative. This article is ambiguous and contradictory. How can they be non-partisan and representative at the same time? What is correct is to comply with the international standards in forming this commission. This resolution of the U.N. General Assembly issued on 20/12/1993 included the following criteria for establishing such commissions:
A. The Government shall be no part to it. If representatives of the government participated in such a commission, they should participate, only, as observers.
B. Such a commission should include:
o Non-Government organizations concerned with human rights.
o Religious and philosophical trends.
o Universities and qualified experts.
o Parliament.
It should be independent in its management, budget and decisions. It should be accountable to the parliament.
6. Article (129) of the draft Constitution reads, “the Presidency shall appoint a commission called the National Judicial Service Commission. The Commission shall be responsible for the general administration of the national judiciary. Its composition and duties shall be determined by the law. This Commission has a sensitive responsibility, so it is of paramount importance that the Constitution provides for it’s impartially and integrity as well as qualifications of its membership”.
7. It should be admitted the current Judiciary has been a subject of partisan intervention which led to ousting hundreds of qualified judges and appointing a great number of partisan judges. A number of qualified unjustly pensioned off judges proposed a reasonable mechanism for judicial reform. They proposed “forming a committee of jurists which include judges who have been members to the Supreme Court and The Court of Appeals up to June 30, 1989, and an equal number of lawyers, legal counsels and professors at law schools. Work experience of all those mentioned should be no less than fifteen years in the respective field”. [Memorandum of Judges 5/11 2005]. This reform is due.
However, the current Daft Constitution does not provide for reform. It subjects appointments of the Chief and members of the Constitutional Court, the Chief Justice, members of the Supreme court and judges of all courts in the North as well as in the South_ it subjects appointments of all those mentioned to the bilateral partisan mechanism of control.

8. The Articles of the proposed Constitution include technical flaws unbecoming of Sudanese juristic knowledge:
o Unfitting padding such as mentioning certain political parties and tasking them with the promotion of the Constitution, indicating oil prices and other details need not to be mentioned in the Constitution.
o Incoherent wording. In some cases the oath taken by official is for “Shura”, in other incidents it is for democracy. The oath is required for identical meanings.
o Poor phraseology.

9. The text of the Constitution repeatedly indicated a noble objective “ make the unity of the Sudan an attractive option:
A. The idea of self-determination has not been part of political literature of modern Sudan. It has, only, been introduced in the early nineties when “Al-Inqaz” regime declared an Arab Islamic identity for the Sudan.
B. The Peace Agreement and the Draft Constitution subject Northern Sudan to the program of the National Congress, the new name of the National Islamic Front known for its exclusive partisan program.
C. Truly, there is a tolerant and enlightened understanding of Islam and Arabic culture in the Sudan. Such understanding represents the opinion of the majority of the people in the North. This is adequate to make unity attractive. However, it is restrained and excluded by virtue of the provisions of the Constitution.

10. Many stipulations in the Constitution did justice to the Southern people and secured their rights in the: Presidency, Ministry, Legislation, Wealth, Civil Service, Judiciary, Independent Commissions, Separate Army, Decentralized powers, Foreign relations and self-determination. Some of these rights such as self-determination are confined to the South considering its special case. Doing justice to the South is agreed upon by the Sudanese political forces. On our part, we led the others and participated in including self-determination in the Resolutions of Asmara Conference, June 1995. This method should take root through the Collective or the Constitutional Conference and in the presence of all. But if the method of the current Regime, “piecemeal dealing” with armed groups and attempting to reach bilateral agreement with them, continued, it would destabilize the Sudan and finally render it hostage to armed demands. Comprehensive just peace requires comprehensive justice; no peace without justice.

11. Article (214) indicated that: In consultation with the Vice-Presidents the president shall establish a council for the Population Census. No controls securing the impartiality and integrity of Council were mentioned.
12. Article (221) concerning establishment of the Assessment and Evaluation Commission is a correct article. However, it pertains to a faulty scheme.

13. No stipulation controlling the independence and integrity of the National Electoral Commission is spelled out knowing that it is one of the important instruments for democracy building.

14. Article (144[2]) included the following:
“The national Armed Forces of the Sudan which incorporates the Sudanese Armed Forces, the Sudan People’s Liberation Army and the Joint/Integrated Units is an orderly professional non-partisan armed forces committed to respect the rule of law, civil governance, democracy, fundamental human rights and the people’s will.”

A. Since the beginning of “Al-Inqaz” rule, the Sudanese Armed Forces has been a subject of partisan intervention which led to many grievances. These realities cannot be over passed with out being addressed same as we proposed for the Judiciary.
B. Negotiations have been, in fact, between the National Congress on one side and the SPLM/A on the other side. As a party to the negotiations, the Sudanese Armed Forces has been absented. The evidence for being absented is the failure to recognize the differences between the Sudanese Armed Forces and the SPLM/A. No matter what is said about the Sudanese Armed Forces, assuming its objective equality with the SPLM/A is groundless,
C. The Sudanese Armed Forces should be present in the proposed National Constitutional Conference side-by-side with the SPLM/A and the other political forces.
D. Looking for an Armed Force that is orderly, professional and non-partisan is a correct objective. In fact, it is required for the success of the democratic system. However, that might not be achieved by integrating two forces representing, as assumed by the Peace Agreement, military arms of two political parties.

15. Article (191) of the Draft Constitution establishes a National Petroleum Commission. This commission is a subject of the two negotiating parties. Nothing in its composition reflects its alleged national nature.

16. Article (221-[2]) included “ the parties to the Comprehensive Peace Agreement shall work with the commission [the Assessment and Evaluation Commission] during the Interim Period with a view to improving the institutions and arrangements created under the Agreement and making the unity of the Sudan a attractive to the people of South Sudan”. Reality denies this ambition:

A. Confirming the visions of the National Congress in the North renders relationship with the North alienating for many Southerners who feel that the concepts of the National Congress make them second class citizens; this pushes them towards secession.

B. Confirming the visions of the SPLM in the South renders relationship with the South alienating to many Northerners and strengthen the opinion of the secessionist.
C. Claiming that the Peace Agreement is a comprehensive peace agreement irrespective of the demands of others will, certainly, open the door for civil and military showdowns around the country.

17. The federal entities in the North provided for in the Constitution are unbalanced. The right thing is to have six federal entities instead of sixteen. The six entities are: Kordofan, Darfur, Eastern Sudan, Middle Sudan, Northern Sudan, the National Capital.

18. Article {143[1]} included that “ a general commission called Grievances & Compensation Commission shall be established. The president of the Republic shall name a chief and members to be approved by the National Assembly. Beside being qualified, the Chief and the members should be men of integrity”. The powers of this commission are limited. The Commission cannot relieve ill feelings resulting from transgressions and grievances that took place not only in “Al-Inqaz” reign but since Independence in 1956. Furthermore, how can the Commission be accountable to the president of the Republic and the National Assembly at the same time? This is another evidence indicating the confusion of the structures of the Constitution! In this respect, the experience of South Africa has been pioneering in treating and healing the injuries and sufferings of the past as well as promising a stabilized and reconciled future. Among the important achievements of this experience is knowing what really happened and admitting it to console the victims and to insure that such atrocities may not happen again. For all that, the experience of Sough Africa has been an example for those who went through a similar experience with the exception of both parties of Khartoum.

19. Article {201[1]} included that “The Central Bank of the Sudan shall be responsible for the conduct of monetary policy. All banking institutions shall be subject to the rules and regulations set by the CBOS”. [2] “A dual banking system shall be established. An Islamic banking system shall operate in Northern Sudan and conventional banking system shall operate in Southern Sudan.

1 Say: The system currently practicing in Northern Sudan is offending Islam because its credit means such as “Murabaha” and “Silm” are more exploitive of the needy than the interest rate. The interest rate, as a return compensating for the decrease of the value of the currency and for inflation, is an Islamic duty: (ye shall have your capital sum: Deal not unjustly, And ye shall not be dealt with unjustly): Surat Al-Baqarah, Aya (279). The interest rate has other purposes such as over draft, control of the volume of current cash, encouraging saving and dealing with the international banking system. These purposes are necessities the “Murabaha” and “Silm” do not fit with. Originally “Murabaha” and “Slim” are instruments of commercial trading i.e. selling and buying and has no relation with the credit required for investment. If Article 201 is implemented in the Sudan and capitals are allowed free movement as is in one country, capitals would certainly desert the banks of the North.

20. Article (207) included that “whenever it is feasible during the Interim Period, the Central Bank of the Sudan shall issue a new currency. The design of the new currency shall reflect the cultural diversity of the Sudan. Until a new currency is issued with the approval of the parties on the recommendations of the CBOS, the circulating currencies in Southern Sudan shall be recognized”.

The historical mistake is the issue of a new currency in 1991 by “Al-Inqaz” regime for no good reasons. Currencies are tools of exchange that serve any regime according to its monetary policies. The Sudanese currency has been impartial during democratic reign. The image of a culturally diversed Sudan accepted by all people is not yet complete. The process is till in the making. So, issuing a new currency at a time awaiting the unknown results of the self-determination referendum is an absurd measure and is a waste of money knowing that the cost of issuing the new currency is estimated at $80 million in a country crowded with hungry people.

21. Article (205) concerns general auditing. The International Transparency Reports classified the Sudan as being one the most corrupt six countries in the world. The reports of the Auditor General continued to record embezzled huge amounts of money which are increasing year after year. So, it is important to set up strict criteria for selecting the Auditor General, Controlling the auditing mechanisms, determining mechanisms for handling the reports of the Auditor General and taking disciplinary measures against corrupt people. Recently, the Chartered Accountant act has been amended which rendered the Association subject to the Government. Furthermore, the amendment ruined the qualification of the Association to join the International Chartered Accountants Organization. The Constitution should provide for issuing a law securing independence of the profession of chartered accountancy.

22. Article (222) of the Constitution converts the Constitution of the Interim Period into a Permanent Constitution for the Sudan in case Southern Sudan people voted in favour of unity. It makes it a Permanent Constitution of the North if the people of the South voted for secession. It puts Northern Sudan under the grip of the National Congress. This stipulation provides for denying the North and the South freedom in case of unity; it denies the North freedom in case of secession! The Article reads”: “The people of South Sudan have to either:

A. Confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement
or
B. Vote for secession.